by jshuberg on Mon Jul 28, 2014 9:22 am
Keep in mind that this ruling relied very heavily on Peruta v. San Diego County. In this ruling, a may issue permitting system existed where law abiding gun owners were routinely being denied permits. The 9th circuit ruled that because the 2nd Amendment guaranteed the right to both keep and bear arms, that a may issue permitting system where law abiding gun owners are denied permits was unconstitutional. It's on appeal The CA attorney general has requested that the full 9th circuit court re-hear the case en-banc on its own initiative, but it is not an appeal as the state of CA was not a formal party in the case. The 9th circuit has not yet decided whether they will re-hear the case, or simply stick with the ruling by the original 3 judge panel. The County of San Diego has decided *not* to appeal the case, so unless the 9th decides to start all over again and re-hear the case, the Peruta ruling will stand.
One of the most compelling arguments they made was that because the Heller ruling established the right of an individual to own firearms was a pre-existing right, that any precedent set by any court that had previously disagreed with the individual right was in err, and no longer valid case law. Every court ruling since Heller that states that the right to carry a firearm outside the home is *not* protected by the 2nd Amendment does so by citing precedent that the 9th circuit claims are no longer valid as of Heller. If the San Diego case ever gets to the Supreme Court, they will basically have to rule on whether their previous Heller decision says what it says, that the right to own a firearm is an individual right that has always been protected by the 2nd Amendment. If it is, then any lower court decision that disagreed with this was wrong, and no longer valid case law. This would nullify all rulings to date that claim the right to carry a firearm outside the home is not protected by the 2nd Amendment, and establish case law that it is in fact protected, which would result in the entire US becoming shall issue.
Because the DC ruling agreed with and relied heavily on the San Diego ruling, the DC court effectively agreed that a shall issue permitting system is the only constitutional permitting system. The recognition of the right to carry as a fundamental right also protects it against tyrannical fees or bureaucratic processes intended to infringe the right. While it's possible that DC could try to implement a permitting system that doesn't comply with this and other rulings, it's unlikely since they would most certainly lose any subsequent lawsuit, and they know it. Note that Illinois implemented a shall issue system under a similar ruling, although it's implementation and costs are more burdensome than most states. I would expect DC to implement a permitting system similar to what the state of Illinois has.
So far these cases have been unfolding very nicely. Gura is really a fantastic advocate for us in the courts!!!
Last edited by
jshuberg on Mon Jul 28, 2014 10:25 am, edited 1 time in total.
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